Surrogacy, Adoption, and Information Governance

There are a number of patients for whom their clinical records need special consideration, including those who have had, or are having, gender reassignment, and children who have been adopted. Trusts will have special guidance and policies for these groups of patients. In the case of gender reassignment and adoption there are particular issues to do with a patient's records prior to their adoption or reassignment and the way in which legally and practically this can be dealt with on patient record systems. This article focuses on the particular issues it raises in respect of handling of clinical records for patients involved in surrogacy and adoption.

Handling of records

In the case of surrogacy, it is essential that medical records are accurate and contemporaneous, as there is, unfortunately, the potential for disputes between the intended parents and surrogate mother. The clinical duty of care is owed to the surrogate mother, and it is therefore essential that her wishes and post-partum plans are recorded, so that there can be no confusion. She must also be recorded as Next of Kin, rather than the intended parents.

In addition, there must be careful handling of these records after a surrogacy arrangement has taken place, as they will contain sensitive information surrounding a patient's birth. When a child has been born to a surrogate mother, there will be a link to the surrogate mother's records. Questions can arise as to the information governance around this.

When should the link between the records be severed?

For a child born under a surrogacy arrangement, parental responsibility will lie with the surrogate mother until the intended parents either:

(a) Obtain a parental order from a court under the Human Fertilisation and Embryology Act 1990; or

(b) Adopt the child.

This means that in practical terms, a link to the surrogate mother's records should remain in place until such formal process has taken place. There can be some confusion amongst staff, as although legal responsibility may not have passed practically, post birth responsibility for the child may pass pending the formal process.

After a parental order has been obtained, or adoption has taken place and parental responsibility has legally passed to the intended mother (by virtue of the adoption or parental order), then it is usual for Trusts to sever the link on the records to the surrogate mother. This is on the basis that the adoption order or parental order has the effect of extinguishing the rights of the surrogate mother, and gives full parental status and parental responsibility to the intended mother.

Creation of a new record

There would be a central record kept (as is usually the case with other adoptions) of the former record, should this need to be accessed for any reason, but this would not be recorded or linked in the child's records post adoption/parental order. As part of this process, a child is given a new NHS number and a new record is created. Pertinent and relevant clinical information should be transferred to the new record; however, demographic information and information relating to the birth parents and the previous identity is not transferred. There may be some circumstances where there is a clinical need to access the full previous medical record. Whether or not there should be access to the previous record would depend on the circumstances of the case.

Access to previous records

Robust procedures should be in place governing access to the pre-adoption record. By stating that a record is "post-adoption", it is alerting staff to the existence of the previous record, and therefore raises the risk of potential inadvertent disclosure, which could cause harm to the individual.

Further issues can arise where an individual who has been born following a surrogacy arrangement, or has been adopted, makes a Subject Access Request. Many individuals will already know about their adoption or the surrogacy arrangement, but in cases where this is not known, those dealing with such a request would need to give careful consideration to whether serious harm could be caused through the disclosure. Consideration should also be given to any legal issues, whilst recognising the rights that individuals have to certain information, including their birth certificates, under the Adoption and Children Act 2002.

For further information or to discuss any aspect of this article, please contact Julia Jones, Senior Associate.